F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JAN 21 1998

PATRICK FISHER
Clerk

JEFFREY TRUJILLO,
Plaintiff-Appellant,
v.
CITY OF ALBUQUERQUE; THE
HONORABLE MARTIN CHAVEZ,
Mayor of the City of Albuquerque;
PATRICK E. BINGHAM; GARY
WALL; BOB BROWN; ROBERT
REYES; BRUCE HICKS; JOHN
NEMITZ; DENNIS PRATT, in their
individual and official capacities,

No. 97-2125
(D.C. No. CIV 95-1303 BB/LFG)
(D. N.M.)

Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Jeffrey D. Trujillo, proceeding pro se, appeals the district courts
orders disposing of his claims of employment discrimination based on national
origin and disability, tort, and breach of contract. We affirm in part and reverse
in part.
BACKGROUND
The City of Albuquerque (the City) terminated Mr. Trujillos employment
on the grounds of chronic tardiness. After the termination was upheld in the
Citys grievance resolution process, Mr. Trujillo filed a charge of discrimination
with the Equal Employment Opportunity Commission and, on July 31, 1995,
received a right-to-sue letter. He then commenced this action in district court by
submitting a request for in forma pauperis (IFP) status and a complaint, naming
the City, a hearing officer, and various City employees as defendants. He alleged
a Title VII claim of discrimination based on national origin, see 42 U.S.C.
2000e-2, along with state tort and contract claims.
The district court clerk failed to either date-stamp these documents or enter
their submission on the docket sheet. The IFP application bears the handwritten
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date of October 27, 1995. R. Vol. I, Doc. 2 at 3. On November 6, Mr. Trujillo

submitted another complaint that amended his allegations, but did not show that it
was a second filing. The clerks office file-stamped the amended complaint with
the November 6 date and docketed it as the initial filing in the case. It was this
document that was served on the defendants. The district court granted the IFP
application on November 7, 1995.
The City and the individual defendants filed motions to dismiss. The
district court dismissed all claims against the individual defendants. As against
the City, the district court allowed Mr. Trujillos tort and contract claims to
proceed. Based on the filing date of November 6, however, it determined that the
Title VII claim was time-barred, and dismissed the claim. Subsequently, Mr.
Trujillo added a claim of discrimination based on disability, in violation of the
Americans with Disabilities Act, see 42 U.S.C. 12112(a), and the Rehabilitation
Act, see 29 U.S.C. 794. After taking Mr. Trujillos deposition, the City moved
for summary judgment on all remaining claims. The district court granted the
motion.
This appeal followed. In preparing the record on appeal, the district court
clerks office realized that the November 6 filing date was incorrect, and changed
the docket sheet to show an initial filing date of October 31. The clerk did not

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insert a notation explaining the selection of the October 31 date or an entry for
the filing of the IFP application.
DISCUSSION
We review the dismissal of a complaint de novo, accepting the
well-pleaded allegations of the complaint as true and construing them in the light
most favorable to plaintiff. Fuller v. Norton, 86 F.3d 1016, 1020 (10th Cir.
1996). We also review de novo the district courts grant of summary judgment on
the merits. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996). Because
Mr. Trujillo is appearing pro se, we will liberally construe his pleadings. See
Whitney v. State of New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997).
We turn first to the dismissal of Mr. Trujillos Title VII discrimination
claim. Persons who intend to litigate a Title VII claim in district court must
commence an action within the ninety-day period following receipt of the
right-to-sue letter. See 42 U.S.C. 2000e-5(f)(1). This limitations period is
tolled, however, while a petition for in forma pauperis status is pending. See
Jarrett v. U.S. Sprint Communications Co,, 22 F.3d 256, 259 (10th Cir. 1994). As
we have previously stated, the rationale behind this concept of constructive filing
is obvious:
Suppose a litigant presents a complaint and IFP petition to the court
clerk within the statute of limitation period, but the court clerk does
not officially file the complaint. Then, the district court does not
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rule on the IFP petition until after the limitation period. Even if
pauper status is granted, the complaint will not be timely filed.
Accordingly, to preserve the litigants rights, courts have deemed the
complaint filed upon presentation to the court clerk when
accompanied by an IFP motion, so that the formal filing relates
back--upon grant of pauper status--to the lodging of the complaint
with the clerk. . . . The fiction is not troublesome when the IFP
petition is granted; the complaint is filed and the case proceeds.
Id.
The present state of the record makes it impossible to discern whether the
doctrine of constructive filing is applicable to this case. Mr. Trujillo alleged that
he received notice of right to sue Tuesday, July 31, 1995, so that a complaint
would be timely if filed on or before Monday, October 30, 1995. In its dismissal
motion, the City asserted that the complaint was filed eight days late, based on the
date of Monday, November 6, which was file-stamped on the service copy and
entered on the docket sheet. Mr. Trujillo stated in his response that he had filed
an amended complaint on November 6, but that he had lodged the initial
complaint and an IFP application on Friday, October 27.
Without discussing Mr. Trujillos contentions, the district court accepted
November 6 as the filing date and dismissed the action. On appeal, the City
concedes that the November 6 date is incorrect, but contends that we should
uphold the district courts ruling. According to the City, we should rely on the
corrected docket entry of October 31, which indicates that Mr. Trujillo was one
day late in filing his complaint.
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We decline to do so. We remand the matter to the district court to

determine the date on which Mr. Trujillo first tendered the complaint and IFP
application to the court. If he submitted these documents on or before
October 30, 1995, then his filing was timely and the court is to conduct further
appropriate proceedings. We have made no determination on the merits of Mr.
Trujillos Title VII discrimination claim.
We agree with the district courts orders dismissing the individual
defendants and entering summary judgment in favor of the City. Dismissal of the
hearing officer from the case on the grounds of absolute judicial immunity is
appropriate. See Saavedra v. City of Albuquerque, 73 F.3d 1525, 1529-30 (10th
Cir. 1996) (holding that City personnel hearing officer is entitled to absolute
judicial immunity from liability arising from personnel decision). Moreover, the
claims against the other individual defendants are properly dismissed for lack of
specific allegations of wrongdoing.
In granting summary judgment in favor of the City, the district court ruled
that (1) the City was immune from tort liability under the New Mexico Tort
Claims Act for the allegedly wrongful discharge because Mr. Trujillo failed to
provide the required notice of his claim within ninety days of the occurrence, see
N.M. Stat. Ann 41-4-16(A); (2) the City had no contract liability for its refusal
to rehire Mr. Trujillo because, under the uncontested facts, the parties had not
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agreed upon the terms of an employment contract, see Garcia v. Middle Rio
Grande Conservancy Dist., 918 P.2d 7, 10 (N.M. 1996); and (3) the City could not
be held responsible for disability discrimination because Mr. Trujillo had never
exhibited or notified anyone at the City he had any mental or physical disability.
R., Vol. I, Doc. 53 at 2-3. After a careful review of the record, we have
determined that the district courts summary judgment ruling is correct.
We AFFIRM the dismissal of the individual defendants and the entry of
summary judgment in favor of the City on the tort, contract, and disability
discrimination claims for substantially the same reasons stated in the district
courts orders of dismissal and summary judgment. We REVERSE and REMAND
the dismissal of Mr. Trujillos Title VII discrimination claim for further
proceedings consistent with this order and judgment. The mandate shall issue
forthwith.
Entered for the Court

Monroe G. McKay
Circuit Judge

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